Small Estates in Virginia

Virginia has special rules allowing for the collection of “small assets” (assets under $50,000.00) without going through the probate process.

Under Virginia Code Section 64.2-601, when the total estate does not exceed $50,000.00, a successor in interest, usually an heir-at-law or a beneficiary of the Will, can collect and distribute the assets without having to go through the full probate process. If there is a Will, it must be admitted to probate, but there is no requirement that any executor or personal representative be appointed. This is often referred to as “recording” the Will. To claim the asset(s) without being appointed executor or personal representative, the person collecting the asset(s) must provide an affidavit signed by all the lawful successors in interest (usually the heirs-at-law or the beneficiaries under the Will) stating that:

1. The total estate, wherever located, does not exceed $50,000.00;

2. At least 60 days have passed since the decedent’s death;

3. No application for the appointment of an executor or personal representative is pending or has been granted in any jurisdiction;

4. The Will, if any, has been admitted to probate;

5. The claimant is entitled to collect the asset and the basis of that entitlement;

6. The names and addresses of all other successors in interest;

7. The name and addresses of the successor(s) designated to receive the assets on behalf of all the successors;

8. An acknowledgement that the claiming successor has a fiduciary duty to safeguard and promptly pay the assets to the lawful successors in accordance with Virginia law.

Virginia Code Section 64.2-602 says that, notwithstanding the Section 64.2-602, the holder of any asset valued at less than $25,000.00 may pay or deliver that asset to any successor without an affidavit. The only requirements are that at least sixty days have elapsed since the death of the decedent and that no application for the appointment of personal representative is pending or has been granted in any jurisdiction.

It is worth noting that Virginia Code Section 64.2-602 is permissive while Section 64.2-601 is mandatory. Many practitioners advise potential personal representatives of estates valued under $25,000.00 to qualify as executor or personal representative since the Courts do not require executors or personal representatives to fulfill any of the reporting requirements applicable to other estates. Functionally, this is much like recording the Will. Doing this gives the executor or personal representative the Letter of Qualification he or she will need to collect the assets and take any other action for which a Letter of Qualification may be necessary, such as accessing a safe deposit box. This does, however, require the payment of the Court’s fees and probate tax, which is minimal.